Ariz. AG Partly Immune|for Wire Seizures

LAS VEGAS (CN) – Two Arizona prosecutors are entitled to absolute immunity for their preparation of warrants for the seizure of millions of dollars in a human-smuggling investigation, but not for the execution of those warrants, the Ninth Circuit ruled Thursday. Arizona Attorney General Terry Goddard and Cameron Holmes, the state’s assistant attorney general, led the execution of more than 20 warrants between 2001 and 2006 to combat the proliferation of “coyotes” – those who smuggle undocumented immigrants into the United States for a fee – in the state. The warrants authorized the seizure of every person-to-person Western Union wire transfer that 1) was sent from certain states to Arizona or, in the case of one warrant, from certain states to Sonora, Mexico; 2) met or exceeded a threshold amount ranging from $500 to $2000; and 3) was made during a certain time period – typically three or four weeks in the spring or fall. Lead plaintiff Javier Torres brought a class action against Goddard and Holmes, claiming that the government’s seizure of more than $9 million was unconstitutional because it was conducted without probable cause to believe that the wire transfers stemmed from criminal activity. A federal judge found for the defendants on the basis that the government attorneys’ actions were protected by absolute immunity. The plaintiffs appealed. Holmes died while the appeal was pending and has been replaced in the proceedings by Colin Holmes, a personal representative of his estate. In a 26-page opinion authored by Circuit Judge Alex Kozinski, the panel held that absolute immunity is available to prosecutors in the context of civil forfeiture proceedings. It also held that Holmes’s preparation of and application for the warrants was shielded by absolute immunity, since those actions constitute “the civil forfeiture analog” to the prosecutor’s application for an arrest warrant in a precedent case. Goddard’s supervision of the warrants’ preparation and application was protected for the same reason, Kozinski wrote. But the serving and executing the warrants is a different story, the panel found. Absolute immunity did not attach to those actions because Holmes “wasn’t performing the function of an advocate,” since serving and executing seizure warrants are the functions of police officers, Kozinski wrote. “We acknowledge that our application of the functional approach means that Holmes is entitled to absolute immunity with respect to some acts but not others, even though all of plaintiffs’ claims are predicated on the same constitutional violation,” he wrote. “However, the result we reach is the ‘essence of the function test’ because absolute immunity is based on the nature of the function performed, not the underlying constitutional claim.” Following similar logic, the panel held that since service and execution are not intimately associated with the judicial phase of proceedings, Goddard cannot claim absolute immunity with respect to his supervision of those actions. The panel expressed no opinion as to whether Holmes was entitled to qualified immunity, which applies when certain conditions are met. Neither side immediately responded to request for comment on Thursday.